Mr John Steven Little v Petfood Processors (WA) Pty Ltd
[2010] FWA 5753
•5 AUGUST 2010
[2010] FWA 5753 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Steven Little
v
Petfood Processors (WA) Pty Ltd
(U2010/7806)
COMMISSIONER CLOGHAN | PERTH, 5 AUGUST 2010 |
Unfair dismissal remedy.
[1] This is an application by Mr John Steven Little (“the Applicant”) alleging that he was unfairly dismissed from his employment at VIP Pet Foods Pty Ltd (“the Employer”) on 24 March 2010.
[2] Mr Little has made the application pursuant to s.394 if the Fair Work Act 2009 (“the Act”) seeking an order for compensation in lieu of reinstatement.
[3] The application was unable to be settled in conciliation and was subsequently referred to me for arbitration.
[4] For the Applicant, Mr Little was the only witness. For the Employer, Mr Christopher Browner, Factory Manager, Wangara gave evidence. Mr Browner was Mr Little’s immediate superior at the time of his termination of employment.
[5] Having heard submissions, received evidence and a number of exhibits, I reserved my decision. In reaching this decision, I have considered all the material provided to the Tribunal.
PRELIMINARY MATTERS
[6] The application was originally set down for hearing on Wednesday 7 July 2010. After no appearance of the Employer’s representative, my Associate contacted the nominated contact person, Group Financial Controller, Ms Spittle. My Associate was advised that Ms Spittle was in Queensland but Mr Browner could be available to attend the Tribunal in 30 minutes. I was uncomfortable with the Employer’s approach to the application and spoke directly to Ms Spittle.
[7] I received Ms Spittle’s apologies for non attendance at the Tribunal (Ms Spittle thought the matter was set down for the following day) and in the course of my discussion presumed she would be in attendance the following day. Secondly, in view of the documentation from three employees of the Employer forwarded to the Tribunal, I enquired as to whether they would also be in attendance with Mr Browner.
[8] Ms Spittle advised that she considered the documentation from the employees sufficient and the Employer had not intended for the authors to appear as witnesses. I advised Ms Spittle that, for the documentation to have any “weight” as evidence, it would be necessary for their authors, and content, to be cross examined. However, whether the Employer called the employees as witnesses, was a matter for itself.
[9] Proceedings were adjourned to Thursday 8 July 2010 at 12 noon.
[10] In addition, the Employer submitted to the Tribunal that the matter should be dismissed against the named respondent employer, as the Applicant was not employed by VIP Petfoods (Aust) Pty Ltd, as set out in the application.
[11] Following discussions between the Employer and the Applicant’s representative, it was ascertained that Mr Little’s employer changed from VIP Petfoods Pty Ltd to Petfood Processors (WA) Pty Ltd during the course of his employment. Essentially, Petfood Processors (WA) Pty Ltd is a labour hire company that provides the labour force to the VIP Petfoods (Aust) Pty Ltd business, where Mr Little worked.
[12] While the Employer conveyed its consent to amend the application to reflect Petfood Processors (WA) Pty Ltd as the Employer, for prudence the Applicant sought to formally amend the application, which was granted in accordance with s.586(a) of the Act.
BACKGROUND
[13] Mr Little commenced employment with the Employer on 16 December 2008.
[14] At the time of his termination of employment, Mr Little was employed as the Employer’s Maintenance Manager. The Applicant has been employed in this position since February 2009. Mr Little was appointed to this position by Ms Kelda Quinn, who was the then Factory Manager at the time.
[15] Mr Little last worked for the Employer on 29 March 2010. The Applicant: received $42.50 per hour; was employed 40 hours per week, and consequently, received $1,700 gross per week.
[16] Mr Chris Browner, the Employer’s Factory Manager commenced employment on 15 March 2010.
[17] On Wednesday 17 March and Thursday 18 March 2010, Mr Little was absent from work on certified sick leave.
[18] On Friday 19 March 2010, Mr Little met with Ms Kelda Quinn, who was visiting from the Sydney Plant.
[19] On Tuesday 23 March 2010, Mr Little had a meeting with Mr Browner. The content of the meeting is essentially the issue which goes to Mr Little’s application for an unfair dismissal remedy.
[20] On Wednesday 24 March 2010, Mr Little provided written notice of resignation of employment.
[21] On Thursday 25 March 2010, the Applicant attended work.
[22] On Friday 25 March 2010, Mr Little was absent from work on certified sick leave.
[23] On Monday 29 March 2010, Mr Little attended work.
[24] At approximately 2:00pm on 29 March 2010, Mr Little was involved in a face-to-face discussion with Mr Browner and a telephone discussion with Ms Quinn in which Mr Browner could hear the Applicant’s comments.
[25] Following comments from Ms Quinn, Mr Little provided Mr Browner with the Employer’s keys and mobile telephone, and left the premises.
[26] On 29 March 2010, Mr Little received correspondence from Ms Kerry Dunbar, the Employer’s Human Resources Manager which is entitled “Your Resignation and Follow Up Letter”.
[27] Mr Little has not worked since 29 March 2010.
LEGISLATIVE FRAMEWORK
[28] The material provisions of the Act for the purposes of this Decision are as follows:
• Section 396 - Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) ...
(d) ...
and
• Section 385 - What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
• Section 386 - Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (my emphasis)
The Applicant’s Case
[29] Mr Little’s uncontested evidence was that on the day Mr Browner commenced (15 March 2010) he had a discussion with him regarding how parts were ordered. As part of that discussion, both the Applicant and Mr Browner went to the back of the store, where Mr Browner asked why Mr Little was negative 1, and in relation to the ordering of parts:
“I am not going to let someone like you fuck this job up for me. I have waited too long for this job...” 2
[30] Mr Little was absent from work on certified sick leave on 17 and 18 March 2010.
[31] On Friday 19 March 2010, Mr Little spoke with Ms Quinn and, as part of the discussion, apologised for being on sick leave. The Applicant was concerned that having sick leave, just after Mr Browner had commenced as the Factory Manager, would not appear positive on his behalf, especially after picking up on his [Mr Browner] attitude when he advised him of his absence due to sickness. 3
[32] In the discussion, Ms Quinn advised Mr Little that Mr Browner had already queried how often the Applicant was off on sick leave 4.
[33] On Monday 22 March 2010, there was little interaction between the Applicant and Mr Browner. There is a dispute whether Mr Browner attended a ‘toolbox’ meeting, but nothing much turns on that issue. During a discussion between Mr Browner and Mr Little, Mr Little apologised for his behaviour in the previous week which he said was due to an ear ache.
[34] In the afternoon of 22 March 2010, Mr Little was asked by Mr Browner to provide a procedure for job cards which he completed. On the following day, Mr Little left his proposal regarding the job cards on his desk but, on returning, found it was missing. Mr Little queried their absence with Mr Browner. Mr Browner confirmed that he had taken them off Mr Little’s desk and would discuss them with the Applicant later that day.
[35] Mr Little’s evidence was that in the afternoon of 23 March 2010, the following exchange, or words to that effect, took place between himself and Mr Browner.
“Chris: This isn’t going to work between you and me.
Steve: What do you mean?
Chris: You need to resign.
Steve: Resign for what?
Chris: Have you read your job description?
Steve: Yes, I have.
Chris: Have you ever been down the written warnings procedure track? It’s not very pleasant and I don’t recommend it for anyone.
Steve: Warnings for what?
Chris: No reply.
Steve: You’ve been here 10 minutes and you’re telling me to resign? You don’t even know what I do.
Chris: Phone me tonight with your decision.” 5
[36] When cross examined by Mr Browner, Mr Little described the exchange as follows:
“Yes?---And we sat down and I believe you said to me, "This isn't going to work between me and you." I says, "I don't see what you're getting at," and then you proceeded in just saying to me basically, "I think you should resign," and I said, "Excuse me, resign for what?" and you said to me, "Have you read your job description?" I said, "Of course I've read it. I've signed it," and you said, "Well, look, you can either resign now or phone me tonight with your answer or I'm going to have to take you down the written warnings procedure track," and you said to me, "Trust me, that's not a nice way to go." So that's when I left the office. I went home and I spoke to my wife and I wasn't in a good situation; stressed my whole family out. Myself - I'm still under stress because of it. That's what happened.” 6
[37] Mr Browner’s immediate retort to the Applicant’s evidence in paragraph [36] was to ask:
“Was there any other witness in that meeting?---No, there wasn't; just me and you, Chris.” 7
[38] Mr Little gave evidence that:
“Overnight I agonised about the situation I had been placed in. I felt it was a hopeless situation. I had enjoyed my job and had done well as my pay increases had shown.” 8
[39] On 24 March 2010, Mr Little handed in his resignation which read as follows:
“Resignation - J S Little
I hereby tender my resignation and give four weeks notice, my last working day being 20 April 2010.
Yours faithfully
J S Little” 9
[40] Subsequently, Mr Little gave evidence that he was asked by Mr Browner whether the Applicant was “going to make it hard for him” to which Mr Little replied that he was not. 10
[41] On 29 March 2010, Mr Little gave Mr Browner his sick leave certificate and a hard copy of correspondence dated 24 March 2010. The correspondence reflects an email dated 26 March 2010 sent at 5:56pm to [email protected].
[42] The correspondence is produced in full below:
“24 March 2010
V.I.P. Petfoods Pty Ltd
Attn: Chris Browner
Dear Sir
Saturday Work - J S Little
Further to our recent discussions regarding the maintenance work to be carried out on Saturday, 27 March 2010, I hereby advise that due to the current circumstances, I will not be available to participate in this work.
You originally discussed Saturday work with me on Tuesday morning, 23 March 2010, and to accommodate the Company’s needs, I agreed (which involved cancelling a previous arrangement).
However, on Tuesday afternoon, 23 March 2010, you issued me with an ultimatum: I can either resign or you will get rid of me by issuing me with warnings. Please note: in the year and a half that I have been employed at V.I.P. Petfoods Pty Ltd, I have never received any warnings, verbal or written. In fact, in February 2010, your predecessor rewarded my work by giving me a performance related increase over and above the annual increase due in July.
On Wednesday, 24 March 2010, I handed in my resignation letter to you. In good faith and to assist the Company while a replacement is found, I have given four weeks notice.
You have questioned my integrity with remarks like: if you stay are you going to sabotage me/the Company? Therefore, for this reason and the circumstances detailed above, I do not think it is appropriate for me to work outside my normal shift hours of 06:00 to 14:30 Monday to Friday.
However, I have organised for the two fitters, Scott and Frank, to complete the necessary tasks. Charles will be on call to complete the electrical work when the mechanical work is complete.
I feel that I do not have any choice in this matter and hope you understand my position.
Yours faithfully
J S Little” 11
[43] At the same meeting with Mr Browner, a telephone conversation with Ms Quinn took place in which the following exchange on 29 March 2010, occurred:
“Kelda: What is this email all about?
Steve: Which email is that? Can you read it to me? I just want to make to (sic) sure it is the right one.
She read a portion to me. She referred to my work related stress and pointed out that I had seen a psychologist before. I told her that it had nothing to do with work related problems, it was a family issue.
Kelda referred to the comment in my email that I had never received any warnings.
Kelda: I’m sure Steve Onley has given you warnings before.
Steve: Warnings for what?
Kelda: I’m sure I’ve discussed it with him. I’m sure he’s given you warnings.
Steve: You might have discussed it with him but he never gave me any.
Kelda: We’ll see about that. I’ll speak to Steve Onley.
Kelda: How can we fix this?
Steve: Give me by job back.
Kelda: You know we can’t do that. You know you can’t work with Chris anyway. How can we fit (sic) it”
Steve: I don’t know.
Kelda: What would you do if you were me?
Steve: I’m not you Kelda so I can’t answer that?
Kelda: Hand you (sic) keys and mobile in to Chris and we’ll pay you for today. HR will be contacting you later.” 12
The Respondent’s Case
[44] The Respondent’s case is described in “Chris Browner’s response to Steven Little Statement of Facts” and commences on 19 March 2010.
[45] Mr Browner states that Ms Quinn’s recollection of her conversation with Mr Little on 19 March 2010 was based around his “attitude and work performance”. 13
[46] At the meeting on 23 March 2010, Mr Browner asserts that his meeting with Mr Little related to a piece of equipment failing, which had to be repaired by a contractor. According to Mr Browner:
“...The Applicant became emotive and stated, “you have only been here for a week and you are questioning my ability to do the job”. Chris Brown (sic) responded that should the Applicant’s performance and attitude not improve, he would have not (sic) choice but to commence with formal performance management including formal warnings. The meeting concluded with the Applicant walking out of the meeting and off site without signing off. This is one of many recorded file notes regarding verbal communications to the Applicant regarding is (sic) attitude, performance, poor communication and lack of responsibility as a member of the management team. The Applicant had been verbally counselled before this incident, as per recorded file notes, regarding poor performance and attitude in the workplace, poor communication with others, and his negative approach to work.” 14
[47] According to Mr Browner, when Mr Little handed in his written resignation, he asked whether this was the Applicant’s final decision, and if so, knowing that Mr Little did not have a job to go to, the Employer would facilitate paid time off (presumably to seek further employment), if the “resignation stood” 15.
[48] The Employer contends that the correspondence (dated 24 March 2010) provided by Mr Little on 29 March 2010, was pre-dated and its intention
“...in the first instance, was to give a past dated explanation as to why the Applicant did not attend work on the Saturday the 27/3/2010 after being asked and agreeing to the overtime on the 23/3/2010. The second more obvious reason was his regret at handing in his resignation and looking for an opportunity to lay blame with the company. Unfortunately, this resulted in his behaviour becoming more emotive and hostile towards Chris Browner.” 16
[49] Mr Browner’s response, on behalf of Ms Quinn, is that concerning her telephone conversation with Mr Little:
“...There was a discussion between Kelda and Steve Little. Kelda did not dismiss the applicant, he had already resigned. The applicant asked for his job back. Kelda informed the applicant that she was not comfortable with this. Kelda Quinn asked the applicant to give his keys and phone to Chris Browner and that we would discuss the problem with the company’s HR representative and then inform him.” 17
[50] Finally, in relation to the Respondent’s case, I observe that Ms Felicity Spittle, Group Financial Controller, provided an undated statement which essentially recites what others have told her and culminates in the “Employer’s opinion” regarding Mr Little’s “home life/marriage”. Ms Spittle did not provide evidence to the Tribunal.
[51] In addition, Mr Scott Bayntun, Maintenance Manager, who previously reported to Mr Little, provided to the Tribunal a “to whom it may concern” statement dated 9 June 2010. While not called as a witness by the Employer, he sets out his working relationship with the Applicant and includes the following:
“This all came to a point when I was asked by Chris Browner (Factory Manager) how am I finding working here and what is my relationship with Steve like? My response was that if things were not to change then I would be taking steps to change what I can. This was in reference to Steve and that I had got to the point where it was not going to be able for me to work at VIP because of my relationship with Steve had worsened to a point that I felt the need to have to move on from my employment here. After further discussion with Chris he asked that I stick it out for a little longer and see if we could work it out between the three of us, this did not end up happening as Steve had moved on in a very short time frame after this.” 18
[52] The Employer also provided to the Tribunal a “to whom it may concern” statement dated 9 June 2010, from Mr Steve Olney. The statement is generally similar to Mr Bayntun and intended to convey a negative performance assessment of Mr Little. The Employer did not call Mr Olney as a witness in proceedings.
[53] Finally, an untitled statement was provided by Mr Kevin Wenzel (2IC VIP Petfoods (Aust) Pty Ltd WA Division) who is more modest in his performance assessment of Mr Little than Messrs Bayntun and Olney. Mr Wenzel confirms that the Applicant advised him of his inability to attend work on 19 March 2010 due to sickness. The Employer did not call Mr Wenzel as a witness to the proceedings.
[54] In addition, the Employer provided four official documents. In date order, they are as follows:
- 3 March 2010: File note of Ms Quinn relating to a discussion between herself and Mr Olney concerning Mr Little. While the file note has a notation to place on Mr Little’s and Mr Olney’s folder, there is nothing to say that the issues discussed were brought to Mr Little’s attention.
- 15 March 2010: File note of Mr Browner’s “walk around” discussion with Mr Little. In summary, the file notes are not a positive assessment of Mr Little.
- 22 March 2010: File note of Ms Quinn’s discussion with Mr Little. I am unable to conclude that the handwriting of the file note, on this occasion, is the same as that of 3 March 2010. However, both are intended to reflect the notes of Ms Quinn. In part, the file note confirms evidence provided by the Applicant and also Mr Browner in response to Mr Little’s Statement of Facts. There is nothing on the documentation to say that the comments were placed on Mr Little’s employment file, or that he had seen them. Also, the file note indicates that they were completed in two parts.
- 23 March 2010: File note of Mr Browner’s discussion with Mr Little. The file note confirms, in part, evidence given by both Mr Browner and Mr Little. For Mr Browner, it was necessary to be “frank” about avoiding “downtime” -- the “downtime” was a “serious issue” -- and Mr Little, “it seems had a history of poor performance”. Finally, the file note concludes that Mr Browner, “would have no choice but to start writing up my perception of poor performance in the form of written warnings”.
DISCUSSION AND INITIAL CONCLUSION
[55] Mr Little conceded in evidence that he resigned from his employment by way of correspondence dated 24 March 2010 to take effect on 20 April 2010. Consequently, for the Tribunal to have jurisdiction to consider his application for unfair dismissal remedy, it is necessary to determine whether he was forced to resign because of the conduct of his Employer, pursuant to s.386(1)(b) of the Act.
[56] The longstanding authority in relation to this matter is the Decision of the Full Court of the Industrial Relations Court of Australia is Mohazab v Dick Smith Electronics (1995) IR 200. For the purposes of this Decision, their Honours stated at page 205:
“In these proceedings it is unnecessary and undesirable to formulate an exhaustive description of what is termination at the initiative of the employer, but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”
[57] In considering the above, what were the actions or conduct of the Employer that led to Mr Little tendering his resignation? The evidence provided at the hearing demonstrates the following:
- that Mr Browner on his first day as Factory Manager, indeed his first day of employment with the Employer, displayed an unusually aggressive and direct approach with Mr Little, his subordinate. Mr Browner could not recollect making notes on any other employee on his first day in employment with the Employer;
- Mr Browner queried Mr Little's history of absence on sick leave after he had taken two days certificated sick leave, on days two and three of Mr Browner’s employment;
- the Employer, after receiving Mr Little's correspondence of 24 March 2010, did not challenge, at any time, Mr Little's assertion that, “on Tuesday afternoon, 23 March 2010, you issued me with an ultimatum I can either resign or you will get rid of me by issuing me with warnings” 19;
- Mr Browner confirmed in the crucial discussion on the afternoon of 23 March 2010, that he used the following or similar words:
“At paragraph 18 he gives his version of the events of the afternoon of Tuesday, 23 March?---Yes.” 20
“Yes, but he says - his interpretation of it was that you said, "Chris [sic], this isn't going to work between you and me," and I'm asking you did you use words to that effect?---I did use words to that effect.” 21 (my emphasis)
“Did you ask him whether he had read his job description?---I think I had the job description with me, yes.” 22
“Or words to that effect. You did talk about written warnings, didn't you?---Yes, we've established we did; yes.” 23 (my emphasis)
“He says that he said to you, "You've been here 10 minutes and you're telling me to resign. You don't even know what I do." Did he say something like that to you?---I think from memory, yes. He started getting upset, but I think that was a result of the emulsified "I didn't start - - -.” 24 (my emphasis)
[58] However, despite the fact of remembering peripheral matters, Mr Browner was adamant that he had not asked Mr Little to resign 25, that he did not say, it wasn't pleasant to go down the "written warnings procedure"26, “phone me tonight with your decision"27, and Mr Little has no "reason to be concerned about his employment"28.
[59] Mr Browner sets out in his Statement of Facts that, at the conclusion of the meeting on 23 March 2010 the Applicant left the premises without signing off and "this is one of the many recorded file notes regarding verbal communications to the Applicant regarding his attitude, performance, poor communication and lack of responsibility as a member of the management team" 29. These words are identical to that contained in the Employer's response to Mr Little's application at first instance. Under cross-examination, Mr Browner conceded that his statement was incorrect and a reckless use of words30.
[60] The facts are that Mr Little, after an initial period of nearly 3 months employment was appointed to the Maintenance Manager's position in February 2009. From February 2009 to March 2010, he enjoyed two salary increases which is beyond the annual July review set out in his offer of employment. Further, in his entire period of employment, there is one document which records a discussion between Ms Quinn and Mr Olney, which could be described as negative of Mr Little’s work performance, and this, was not brought to his attention.
[61] Mr Browner, in his Statement of Facts, states that on 29 March 2010, a “conference call” 31 took place between himself, the Applicant and Ms Quinn. Under cross examination, Mr Browner admitted that this was not the case and he handed to Mr Little his mobile phone so he could have a discussion with Ms Quinn. While not fatal in itself, the fact is that Mr Browner was only able to hear Mr Little’s words in the discussion, he states in his Statement of Facts that, “the purpose of this call was to determine if there was the potential to resolve the concerns raised and move the relationship forward. Ultimately, this was not achieved and the decision was made to let the Applicant leave the business without working out his notice”. In cross examination of Mr Browner, the following exchange is pertinent.
“...Wasn't it the case that he was asked to hand over his keys and any other - - -?---Yes, but - - -.” 32
“Hand your keys and your mobile into Chris and we'll pay you for today and you'll be getting a letter." That's what he says he was told. I know you didn't hear what Kelda said, but did you get his phone and his keys?---Yes, I can't remember. I must've spoken to Kelda. I think that's what she asked me to do, but, yes, I did.” 33
“And did you ask him to leave the premises?---I can't remember, but Steve left so, yes.” 34
[62] Finally, I note that Mr Browner conceded that the Statement of Facts signed by himself was prepared by another employee of the Employer, 35 and some statements in the Statement were irrelevant to proceedings:
“And paragraph 8 - I would imagine that that also was written for you by somebody else and you would agree with what his Honour said this morning that that statement is completely irrelevant?---Got nothing to do with it and that's why I've got this here because - get rid of it. It's got nothing to do with it, yes.” 36
“So you agree that it's completely irrelevant?---Yes.” 37
[63] The Applicant's representative put to the Tribunal that determination of the application is, "critically a question of credibility" 38. This issue is critical, particularly, as Mr Browner was keen to put to Mr Little that there was no witness to the meeting on 23 March 2010.
[64] The evidence presented by Mr Little remained intact and largely uncontradicted. Having carefully considered all the evidence presented by the Applicant, I can find no reason to disbelieve his version of events.
[65] In contrast, I find a number of aspects with regard to the Employer’s behaviour in this matter disturbing. The facts and other matters revealed in the hearing, lead to the conclusion that Mr Little was given the choice of resigning or being put through a series of warnings with the ultimate intention of terminating his employment.
[66] All the documentary evidence after Mr Little’s resignation confirms his dissatisfaction with being forced to resign. In contrast, the Employer having received Mr Little's application for an unfair dismissal remedy, has formulated a response to portray him as a "poor performer" who resigned under the threat of performance management. And, if that wasn't sufficient, considered it relevant for the Tribunal to "note" issues relating to his home life and marriage 39. Ironically, I consider it important to note that Mr Browner volunteered, in relation to a reference for the Applicant from the Employer:
“I think your case is quite strong in that your record is quite sound. I don't think we've disputed that. I think there's been some - what would you call them - memoranda, but there's certainly been no written-up warnings, et cetera...” 40.
[67] In the very process of this hearing, glimpses of truth as described above relating to Mr Little appeared, in contrast, to the general determination of the Employer to make his forced resignation "stick".
[68] The Act provides that being forced to resign is dismissal. I am satisfied that Mr Browner, for whatever reason, put to Mr Little “fall on your own sword” and resign. Alternatively, stay and enter the door of “formal warnings” which would ultimately lead to his termination of employment. Mr Little chose to leave immediately rather than accept the Employer’s conduct. The fact that he gave one month’s notice, was practical and common sense for somebody who did not have a job to go to, and I do not view this action as tolerating or consenting to the Employer’s behaviour.
[69] Having been satisfied that Mr Little was dismissed, it is necessary to consider whether the dismissal was harsh, unjust and unreasonable, pursuant to s.385 of the Act taking into account the criteria set out in s.387.
[70] For the reasons set out previously, there was no valid reason to terminate Mr Little’s employment. Further, the only reason given in evidence was that the employment relationship between Mr Browner and Mr Little was not going to work. This assessment by Mr Browner appears to have existed from the first day of employment, and he made Mr Little aware of his views directly on day one of his employment as Factory Manager.
[71] The remaining criteria in s.387 of the Act relating to human resource factors were absent in any consideration by Mr Browner. My only observation is that if the Employer’s reason for termination of employment was for breach of “mutual trust and confidence based on information from Chris Browner” as set out in the Human Resource Manager’s letter of 29 March 2010, it was not pursued in evidence. Further, if that was the reason, it was reached after less than five working days between Mr Browner and Mr Little.
LEGISLATIVE FRAMEWORK (continued)
[72] Section 390 states:
(1) Subject to subsection (3), FWA may order a person's reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
CONCLUSION
[73] I am satisfied, for the reasons outlined above, that Mr Little was dismissed and that he was unfairly dismissed.
[74] I am also satisfied, pursuant to s.390(3)(a) of the Act, that reinstatement is inappropriate.
[75] I am satisfied that an order for compensation, pursuant to s.390(3)(b) is appropriate.
What compensation should Mr Little receive?
[76] For the reasons outlined above, I have formed the view that Mr Little intended to continue in his employment with the Employer if it was not for the events of 23 March 2010 (s.392(c)). Further, I am satisfied from the material presented to the Tribunal that since being dismissed, he has actively sought employment to mitigate his loss (s.392(d)).
[77] Having taken into account s.392(a), (b) and the fact that Mr Little has not been in paid employment since his dismissal, I propose to exercise my discretion by making an Order providing compensation equivalent to, foregone wages from 21 April 2010 to the date of an Order in full weeks:
- 15 weeks @ $1,700 gross per week
- Total: $25,500 gross
[78] Accordingly, an Order to this effect will be issued.
COMMISSIONER
Appearances:
Mr J Little, the applicant
Mr C Browner on behalf of Petfood Processors (WA) Pty Ltd
Hearing details:
2010:
Perth
7 and 8 July
1 PN 488
2 Exhibit A1 - Witness Statement of John Steven Little
3 Exhibit A1 - Witness Statement of John Steven Little
4 Exhibit A1 - Witness Statement of John Steven Little
5 Exhibit A1 - Witness Statement of John Steven Little
6 PN 124
7 PN 127
8 PN 635
9 Applicant’s bundle of documents - number 11
10 Exhibit A1 - Witness Statement of John Steven Little
11 Applicant’s bundle of documents - number 1
12 Exhibit 1A - Witness Statement of John Steven Little
13 Respondent’s bundle of documents - Chris Browner response to the Steven Little statement of facts - para 9
14 Exhibit R1 - Statement of Facts as ascertained by the respondent
15 Exhibit R1
16 Exhibit R1 - Statement of Facts as ascertained by the respondent
17 Respondent’s bundle of documents - Chris Browner response to the Steven Little statement of facts - para 17
18 Respondent’s bundle of documents - statement by Scott Bayntun
19 Exhibit A1 and PN 124
20 PN 490
21 PN 500
22 PN 503
23 PN 514
24 PN 517
25 PN 502
26 PN 506
27 PN 520
28 PN 525
29 Exhibit R1
30 PN 561
31 Exhibit R1
32 PN 536
33 PN 537
34 PN 538
35 PN 546
36 PN 550
37 PN 551
38 PN 627
39 Exhibit R1
40 PN 107
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